DELHI’S SPECIAL STATUS: A BANE OR A BOON?

This article was written by Harshvardhan Rajpurohit, a student of NUALS Kochi.

The article basically puts light on the ongoing tiff between the government of Delhi and the Union. It talks about the various reasons why the state government cannot be given absolute control of the affairs of Delhi unlike the other states in the country. The status of Delhi is different from that of the other states as far as the relations of India with the countries in the world are concerned. Also, Delhi is one such state which has people from every nook and corner of the country and hence why the situations and problems that arise are to be dealt with utmost care.

Delhi, the capital of India, has a rich history as far as politics and global relations are concerned. It is the political hub of India, where every political party traces its roots. The history speaks the importance and contribution of Delhi towards developing India as a country which has left its mark on the global map today. Delhi has the most captivating history among other cities of this country. Apart from being the political capital of India, Delhi is an important administrative unit of government of India. Major ministries of Indian government are situated in Delhi. The parliament of India – the emblem of Indian democracy – is situated in Delhi. All the major government offices and departments find their place in Delhi. In other words, it is the power house of Indian democracy which rules the nation.

Talking about the dispute between the state government and the Lt. Governor one can see that the state government is demanding something which is not practical considering the diversity of people and the image of the state at the global platform. The city is of vital importance to Central Government as it is the seat of a large number of important and vital institutions such as Head of the State, National Legislature, National Executive, Apex Judiciary, Heads of Armed Forces, Para Military Forces, Foreign Diplomatic Missions, International Organizations, Important Educational, Medical heads.

Delhi has been granted a special status

Under Article 239AA, Delhi was given special status and was deemed a National Capital Territory. Under Article 239AA, the National Capital Territory of Delhi has a Legislative Assembly which has the power to make powers for the territory except for three subjects included in the State list. This is different from other Union Territories where the Legislative Assembly is under the Governor.

By the Constitution Sixty-Ninth (Amendment) Act, 1991, Article 239-AA was introduced in Part VIII of the Constitution. The object of the amendment in view of the stated position of Delhi was to preserve the ultimate responsibility of administration on the President. This article renamed the Union Territory of Delhi as the “National Capital Territory of Delhi” and provided that there shall be a Legislative Assembly for such National Capital Territory. The Legislative Assembly so created was empowered by Clause (3) of the said article to make laws for the whole or any part of the NCT with respect to any of the matters enumerated in the State List or in the Concurrent List insofar as any such matter is applicable to Union Territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List insofar as they relate to the said Entries 1, 2 and 18.

Clause (3) further provided that the power conferred upon the Legislative Assembly of Delhi by the said article shall not derogate from the powers of Parliament “to make laws with respect to any matter for a Union Territory or any part thereof .The subordinate status of the Delhi Legislature is too obvious to merit any emphasis.”

The special status has been granted on the lines of federalism

The 69th amendment does not go against the basic structure doctrine. As has been held by the apex court in state of West Bengal V. UOI[1] that the Indian Constitution did not propound a principle of absolute federalism. The court outlined the characteristics, which highlight the fact that the Indian Constitution is not a “traditional federal Constitution. Firstly, there is no separate Constitution for each State as is required in a federal state. Secondly, the Constitution is liable to be altered by the Union Parliament alone and the units of the country i.e. the States have no power to alter it”.

As far as 69th amendment is concerned, it does not go against the basic structure doctrine as the legislative and executive power of the States is subject to the respective supreme powers of the Union.[2]Thus it is clear that the union has supremacy over the states and can amend the constitution in furtherance of public interest as long as it does not go against the basic structure doctrine that clearly doesn’t have absolute federalism as its feature. Therefore the said amendment does not in any case impinge upon the basic structure of the constitution.

Comparison with THE UNITED STATES:

Bringing in picture the US Constitution, where the working of government is divided into two domains, namely the Federal and the State Governments. These governments are not subordinate to each other but are co-ordinated and independent within the scopes allotted to them.[3] It is said that such a structure of independent co-ordinate authorities is what forms the gist of federal principle and India, because of the absence of this feature does not qualify to be a federal state. The Indian Constitution per se is not a covenant, or a pact between the States; rather the States are the products of the Constitution and ultimately of Parliament.

As was concluded by the Delhi State Re-organization committee formed in the year 1989 to examine the set up of delhi – “that it will not be in the National interest and in the interest of Delhi itself, to restructure the set-up in Delhi as a full fledged constituent State of the Union.” Thus the intent behind the said amendment was to give Delhi a separate identity, it being the national capital and politically strong. Thus it was not deemed fit to leave it in the hands of the local government and hence why delhi has been given the special status under article 239AA.

The constitution of India contains several provisions to create a mechanism for effecting temporary adjustments in the frame of the distribution of powers and thus introduce an element of flexibility. India unlike other federations[4] which have a too rigid distribution of powers, which deny power to the centre to take effective measures to meet a given situation, the framers of the Indian constitution took adequate care to create a federal structure which could be moulded according to the needs of the situation.

Delhi is a union territory[5] with a special status under article 239AA, the union has the power to legislate over any matter even if it comes under the state list.[6] The apex court in a number of cases has ruled out that in the NCT of Delhi the laws made by the Delhi Legislative Assembly are always subordinate to the laws of Parliament whether prior or post in time. This has been held by a Constitution Bench of nine Judges of this Court in New Delhi Municipal Council v. State of Punjab and Ors.[7], wherein the Court held that Delhi Legislative Assembly is inferior to Parliament in hierarchy.

By reserving the control of the affairs of Delhi, the union wants to ensure utmost security to the people residing in the state, keeping in mind the diversity from not only within the country but also from outside the country in the form of diplomats, delegates working in the embassies of foreign countries. The state is also the hub of political parties and also some of the most important structures (monuments, foreign offices ). Any problem faced by the people of this state would in turn affect the image of the country as a whole at the global platform.